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«TO WHAT EXTENT DOES THE ICCPR SUPPORT PROCREATION AND PARENTING BY LESBIANS AND GAY MEN? The ICCPR and Procreation and Parenting by Lesbians and Gay ...»

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That ‘family’, for the purposes of art 17 and art 23(1), includes parent–child relationships is routinely recognised by the Committee jurisprudence on heterosexual nuclear families (whether based on marriage or cohabitation, and whether intact or not), regardless of whether the Committee ends up finding that a violation of family rights occurred in the circumstances of the specific case.40 Further, just as the domestic laws of member states tend to recognise an unwed biological mother as her child’s legal parent, so does the relationship between unmarried mothers and their biological children qualify self-evidently as ‘family’ for the purposes of the ICCPR.41 The connection between protecting parent–child relationships and providing legal recognition for such relationships is clear, so that the relevance of art 23(1) to the issue of attributing parental rights requires no elaboration. The relevance of art 17 to the same issue may be less immediately clear. In particular, lack of legal recognition for parent–child relationships is an omission, and we do not tend to think of omissions as forms of ‘interference’.

However, the characterisation of an absence of legal recognition for particular family forms as interference is not as far-fetched as it may appear at first blush.

The law’s failure to attribute parental authority (or responsibility, as Australian law terms it)42 to people who are morally entitled to parental rights imposes on them a number of burdens and disadvantages. These can certainly be said to ‘interfere’ with their family life. Indeed, the Human Rights Committee has established that if a family is left in a state of uncertainty with respect to its 39 Joseph, Schulz and Castan, above n 24, 586.

40 See, eg, Aumeeruddy-Cziffra v Mauritius, UN Human Rights Committee, Communication No 35/1978, UN Doc CCPR/C/12/D/35/1978 (9 April 1981) [9.2(b)(2)(ii)]; Hendriks v The Netherlands, UN Human Rights Committee, Communication No 201/1985, UN Doc CCPR/C/33/D/201/1985 (12 August 1988) [10.3]; Balaguer Santacana v Spain, UN Human Rights Committee, Communication No 417/1990, UN Doc CCPR/C/51/D/417/1990 (29 July 1994) [10.2]; Fei v Colombia, UN Human Rights Committee, Communication No 514/1992, UN Doc CCPR/C/53/D/514/1992 (26 April 1995) [8.10]; Canepa v Canada, UN Human Rights Committee, Communication No 558/1993, UN Doc CCPR/C/59/D/558/1993 (20 June 1997) [11.5]; Winata v Australia, UN Human Rights Committee, Communication No 930/2000, UN Doc CCPR/C/72/D/930/2000 (16 August 2001) [7.2]; L P v Czech Republic, UN Human Rights Committee, Communication No 946/2000, UN Doc CCPR/C/75/D/946/2000 (19 August 2002) [7.3]; Bakhtiyari v Australia, UN Human Rights Committee, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (6 November 2003) [9.6].

41 Buckle v New Zealand, UN Human Rights Committee, Communication No 858/1999, UN Doc CCPR/C/70/D/858/1999 (16 November 2000) [9.1]–[9.2].

42 See Family Law Act 1975 (Cth) div 2.

Melbourne Journal of International Law [Vol 9 ability to pursue ‘the normal behaviour of a family’ an interference with family life occurs.43 The Committee has clarified that ‘it is … in State legislation above all that provision must be made for the protection of the [art 17] right’.44 Furthermore, the interference may well be said to display the required arbitrary character45 due to the absence of a rational connection between the child’s best interest and the lack of legal recognition of their relationship with relevant adults.

B Are Lesbian and Gay Families Covered by Arts 23(1) and 17?

If arts 23(1) and 17 apply to the problem of the attribution of parental rights, can they be used to redress this problem specifically in the context of lesbian and gay families?

The provisions which international human rights documents devote to the family have been said to make use of ‘broad abstractions in recognition of the fact that the laws of different nations reflect a wide range of approaches to the family’.46 Indeed, one of the Committee’s General Comments points out that the concept of ‘family’, in the context of art 23(1), is culturally relative, going on to

argue as follows:

In view of the existence of various forms of family, such as unmarried couples and their children or single parents and their children, States parties should also indicate whether and to what extent such types of family and their members are recognized and protected by domestic law and practice.47 This statement provides some support for the claim that the ICCPR family provisions require legal recognition for parent–child relationships in lesbian and gay families. However, other points made by the Committee are more ambiguous

in their support for this claim. In particular, consider the following statement:

when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in art 23. Consequently, States parties should report on how the concept and scope of the family is construed or defined in their own society and legal system.48 The first problem with this statement is that it suggests that the families entitled to the protection of art 23(1) are not all the formations that qualify as ‘family’ in society, but only those which both society and the state have already agreed should count as legally protected families. This has been called by two 43 Aumeeruddy-Cziffra v Mauritius, UN Human Rights Committee, Communication No 35/1978, supp 40, UN Doc CCPR/C/12/D/35/1978 (9 April 1981) [9.2(b)(2)(i)2]– [9.2(b)(2)(i)3].





44 UN Human Rights Committee, General Comment No 16: Article 17 (Right to Privacy) (1988), as contained in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (8 May 2006) 181.

45 The question of the ‘unlawful’ character of the interference would be logically irrelevant to a case such as this, in which the ‘interference’ were deemed to arise on the basis of a lack of legal recognition.

46 Ann Laquer Estin, ‘Families and Children in International Law: An Introduction’ (2002) 12 Transnational Law and Contemporary Problems 271, 287.

47 UN Human Rights Committee, General Comment No 19, above n 8.

48 Ibid.

2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men commentators the ‘symbiotic relationship between the international norm and the

domestic law’:

the ambiguity of [art 23(1)] means that … [its] operational context is crucial … Thus, the meaning of … “family” will only become apparent in accordance with the accepted definitions of the [concept] in any given jurisdiction.49 While this symbiotic relationship may well ‘accommodate differences as between States Parties in their respective conceptions of the family’,50 it is less apt to accommodate the possible differences between a certain societal group and the state having jurisdiction over it in their respective conceptions of the family.

In particular, this symbiotic relationship may have the effect of watering down the protection provided to lesbian and gay families by the ICCPR. If ‘family’ for the purpose of art 23(1) is a state-defined concept, we are left with two possibilities. Either art 23(1) is useless because it requires recognition of lesbian and gay families involving children only in those states where the law already fully recognises them, or it is of limited use because at best it requires full recognition of such families only in states that already partially recognise them.

Problems remain even if the view is taken that ‘a State cannot prescribe a narrower definition of “family” than that adopted within that State’s society’51 — a view that accords with the Committee’s statement that ‘“family” … must be understood broadly as to include all those comprising a family as understood in the society concerned’.52 In particular, even if the arbiter in defining the concept of family for the purposes of art 23(1) is taken to be civil society rather than the state, it is unclear what ‘society’ is for the purposes of the Committee’s statement. If dominant societal perceptions and discursive practices are crucial and these tend to construct lesbians and gay men as anti-family and non-familial,53 how useful is art 23(1) going to be as a tool for claiming recognition for lesbian and gay families?

Consider also the Committee’s jurisprudence on the same issue. On the one hand the Committee has reiterated the principle that ‘the term “family” be given a broad interpretation so as to include all those comprising the family as understood in the society in question’ and has consistently applied this principle when dealing with what counts as a family for the purposes of art 23(1) in a non-Western context.54 On the other hand, in a case arising in the Western context, the Committee has stated, as late as the mid-1990s, that a relationship must display the ‘minimal requirements’ of ‘life together, economic ties, a 49 Juliet Behrens and Phillip Tahmindjis, ‘Family Law and Human Rights’ in David Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential (1998) 169, 172.

50 Douglas Hodgson, ‘The International Legal Recognition and Protection of the Family’ (1994) 8 Australian Journal of Family Law 219, 224.

51 Joseph, Schultz and Castan, above n 24, 587.

52 Ngambi v France, UN Human Rights Committee, Communication No 1179/2003, UN Doc CCPR/C/81/D/1179/2003 (16 July 2004) [6.4].

53 Aleardo Zanghellini, ‘Lesbian and Gay Identity, the Closet and Laws on Procreation and Parenting’ (2007) 16 Griffith Law Review 107.

54 Hopu v France, UN Human Rights Committee, Communication No 549/1993, UN Doc CCPR/C/60/D/549/1993/Rev.1 (29 December 1997) [10.3].

Melbourne Journal of International Law [Vol 9 regular and intense relationship, etc’ in order for it to be protected as a family under art 23(1).55 The approach is not actually contradictory, if one considers what seems to be its likely premise. Consider the following statement by the Committee: ‘The Committee notes that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition’.56 On the one hand, this statement suggests that the Committee is prepared to recognise that there may be different notions of what counts as family in different states or regions. On the other hand, the statement indicates that the Committee assumes that there is relative agreement on the requirements that an entity/relationship must display in order for it to qualify as family within each of these discrete geographical areas. The problem with this fictitious assumption is that it tends to entail that what the majority or ‘common sense’ does not regard as familial in any given geographical area does not count as family for the purposes of the protection offered by art 23(1). This is particularly unfortunate, and it runs against the whole ethos of the human rights system, which developed partly as a means to protect unpopular minorities from the tyranny of majorities.

Consider the case of a gay man who acted as sperm donor to a lesbian couple and maintains contact with the child. What would be the consequences of applying, to his relationship with his biological child, the Committee’s principle that a relationship must involve life together and economic ties, as well as be regular and intense, in order for it to qualify as family in a Western context? The child and its ‘limited’ parent in my example do not live together, there may be no economic ties between them, and their relationship may be regular but not intense, or intense but not regular. Such a relationship would fail to measure up under the Committee’s standard. Accordingly, a state failing to legally recognise the contact rights of the limited parent might not be violating art 23(1).

Predictably, ‘family’ for the purposes of art 17 is defined by the Committee in terms analogous to those applicable to art 23(1): ‘the objectives of the Covenant require that for purposes of art 17 this term be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned’.57 This gives rise, in the context of art 17, to the same uncertainties in the interpretation of art 23(1). Thus, establishing that the interferences with family life occasioned by lack of recognition for lesbian and gay families violate art 17 is no easier than establishing a violation of art 23(1) on the same basis.

55 Santacana v Spain, UN Human Rights Committee, Communication No 417/1990, UN Doc CCPR/C/51/D/417/1990 (29 July 1994) [10.2]. In an early case the absence of cohabitation (between a mother and daughter) was sufficient to deny that a family existed for the purposes of art 23(1): AS v Canada, UN Human Rights Committee, Communication No 68/1980, UN Doc CCPR/C/12/D/68/1980 (31 March 1981) [8.2(b)]. However, more recently the Committee noted that ‘the right to protection of family life [is not] necessarily

displaced by geographical separation, infidelity, or the absence of conjugal relations’:

Ngambi v France, UN Human Rights Committee, Communication No 1179/2003, UN Doc CCPR/C/81/D/1179/2003 (16 July 2004) [6.4].

56 UN Human Rights Committee, General Comment No 19, above n 8, [2].

57 UN Human Rights Committee, General Comment No 16, above n 44, [5].

2008]The ICCPR and Procreation and Parenting by Lesbians and Gay Men In sum, what has so far been the Committee’s approach to arts 17 and 23(1) poses some obstacles to, while not categorically ruling out, lesbians’ and gay men’s successful use of those provisions to support their parental rights.

C Does It Make a Difference if Arts 23(1) and 17 Are Read in conjunction with Art 2(1) of the ICCPR?



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